STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DAVID L BARNES, Employee

WORTHINGTON CYLINDERS
WISCONSIN LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10401315AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed June 17, 2010
barneda . usd : 115 : 1 PC 711

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


A department determination finding that the employee had been discharged for misconduct and denying benefits as a result was dated and mailed on February 10, 2010, and stated on its face that it would become final unless a written appeal was postmarked or received by February 24, 2010.

The employee's appeal was filed on March 17, 2010.

The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000). It was certainly within the employee's control to read the determination when he received it and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

The employee explains that he did not file his appeal before the deadline because he was awaiting the results of a related grievance process.

However, although the employee may have found it useful to utilize the outcome of the grievance process, and the information this process generated, in prosecuting his appeal here, the fact that he did not have this knowledge or information didn't prevent him from crafting and filing a timely appeal. See, e.g., Woods v. Kohls Food Stores, Inc., UI Hearing No. 03603487MW (LIRC May 21, 2003)(fact that employee wanted to know the outcome of his criminal case and have available documentation confirming his acquittal before filing his appeal is not reason beyond control); Minnick v. General Motors Corp., UI Hearing No. 03008018MD (LIRC Feb. 5, 2004) (fact that employee waited for outcome of contract grievance challenging her discharge before filing request for hearing not a reason beyond control for untimely appeal).

The employee failed to sustain his burden to prove that his request for hearing was filed after the appeal deadline for a reason beyond his control.



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uploaded 2010/08/11